United States v. Anzalone

decided: June 24, 1952.

UNITED STATESv.ANZALONE

Author: Biggs

Before BIGGS, Chief Judge, and MARIS and McLAUGHLIN, Circuit Judges.

BIGGS, Chief Judge.

The question presented by this appeal is a narrow one. Did Anzalone falsely and willfully represent himself to be a citizen of the United States in violation of Section 911,*fn1 Title 18 U.S.C., when on November 2, 1948, he signed and filed a Voter's Certificate,*fn2 required by the Election Code of Pennsylvania, 25 P.S.Pa. § 3050. A jury found Anzalone guilty and the court below sustained the judgment of conviction. 100 F.Supp. 987. Anzalone has appealed. We conclude that the court below was in error and should have granted Anzalone's motion for judgment of acquittal. Rule 29, F.R.Crim.P., 18 U.S.C.

There can be no question that on October 5, 1940, Anzalone represented that he was a citizen of the United States when he signed and filed a Pennsylvania Voter's Registration Card as required by the Pennsylvania Code, 25 P.S.Pa. § 951-17.*fn3 In this he swore that he was a citizen of the United States. See also 25 P.S.Pa. § 2811. But any indictment based on that offense was barred by the applicable statute of limitations by the end of 1943. Section 3282, Title 18 U.S.C. The United States therefore relies and must rely on the representations of the Voter's Certificate executed by Anzalone in 1948.

Article VIII, Section 1, of the Pennsylvania Constitution, P.S. defines the qualifications an elector must have, as does 25 P.S.Pa. § 2811. The statute is quoted below and it is in substantially the terms of the Constitution of Pennsylvania.*fn4 The United States prosecuted Anzalone upon the theory that since he was required by law to sign a Voter's Certificate, if he was to vote,*fn5 and did so, he represented himself to be a qualified elector on November 2, 1948. Since under the provisions of Section 2811(1), runs the argument, Anzalone had to be a citizen of the United States to be qualified as an elector, he therefore represented himself to be a citizen of the United States on this occasion. This view found favor in the eyes of the court below, 100 F.Supp. 987, 990, relying by way of analogy largely on United States v. Franklin, 7 Cir., 188 F.2d 182, 187. Cf. United States v. Martinez, D.C.M.D.Pa., 73 F.Supp. 403, 405, and Fotie v. United States, 8 Cir., 137 F.2d 831.*fn6

In the Franklin case, supra, 188 F.2d at page 187, in respect to counts 3 and 4, Franklin having been registered, voted in the primary and general elections and had signed an application for a ballot which, almost in haec verba, corresponded to the Voter's Certificate signed by Anzalone. This was as required by Illinois law. See Illinois Stats.Ann. Smith-Hurd, Ch. 46, § 5-29.*fn7 The application for the ballot required under Illinois law, Illinois Stats.Ann. Smith-Hurd, Ch. 46, § 5-29, gaveFranklin voting status and entitled him to vote in substantially the same manner as 25 P.S.Pa. § 951-36(a)*fn8 conferred voting status upon Anzalone.

We have studied Judge Finnegan's excellent opinion in the Franklin case with care and what he has said is entitled to great weight but we feel constrained to reach a different result. Under the law of Pennsylvania, as evidenced by Section 951-36(a), quoted herein in footnote 8, an elector who has been registered and signs his name and address to a Voter's Certificate, is entitled to vote in the district of his registration "* * * unless it be shown to the satisfaction of the election officers that he has become disqualified by removal from the district since registration, or that he has violated any law of * * * [the] Commonwealth [of Pennsylvania] prohibiting bribery at elections * * *", or his signature on his application for a ballot is not the same as that shown on his registration. In short, when Anzalone signed the Voter's Certificate he represented only that he was the individual who had registered, that he had not removed from the voting district and that he had not violated any Pennsylvania law prohibiting bribery. Conversely his right to vote could be challenged successfully only if he had become disqualified to vote by removal from the district since registration or had violated a law of the Commonwealth relating to bribery or his signature on the Voter's Certificate was not the same as that shown on his Registration Card.*fn9 Only by way of interpretation and indirection, by relating the Voter's Certificate back to the Registration Card, can it be said that Anzalone represented himself to be a citizen of the United States.*fn10 In order to hold Anzalone guilty of the crime prohibited by the federal Act, Section 911, Title 18 U.S.C., it is necessary to construe the law of Pennsylvania in such a way as to treat the Voter's Certificate as a direct representation of United States citizenship. So construed the federal statute would incur the peril of unconstitutionality. The crime described would be half in and half out of the federal jurisdiction, cognizable partially in terms of a state statute.Cf. United States v. Brandenburg, 3 Cir., 144 F.2d 656, 154 A.L.R. 1160.Such an interpretation would seem to be so vague as to require the condemnation expressed by the Supreme Court in United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516. See also United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877.

The provisions of Section 911 of Title 18 U.S.C., are, however, pellucid. The statute must be construed as its face requires. Accordingly we hold that a conviction under Section 911 requires a direct representation by the accused that he is a citizen of the United States. Since this is lacking in the instant case we must reverse the court below.

This disposition relieves us of the necessity to discuss or determine other questions raised by the parties to the appeal.

The judgment of conviction will be reversed and the cause will be remanded with the direction to the court below to ...

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